Central Administrative Tribunal - Gauhati
Vinay Kumar vs M/O Finance on 22 May, 2020
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 040/00062/2018
Date of Order: This, the 22nd day of May 2020
THE HON'BLE SMT. MANJULA DAS, MEMBER (J)
THE HON'BLE MR. NEKKHOMANG NEIHSIAL, MEMBER (A)
Shri Vinay Kumar
Son of Late Vishnu Deo
Flat No. 6F, Block C, Mainak Greens
G S Road, Guwahati - 781005
Presently working as -
Principal Chief Commissioner of Income Tax
2nd Floor, Aaykar Bhawan
G.S. Road, Guwahati - 781005.
...Applicant
By Advocates: Dr. J.L. Sarkar & Sri G.J. Sharma
-Versus-
1. The Union of India
Represented by the Secretary
Government of India, Ministry of Finance
Department of Revenue
North Block, New Delhi, Pin - 110001.
2. The Central Board of Direct Taxes
Represented by its Chairman
Department of Revenue
North Block, New Delhi, Pin - 110001.
3. Union Public Service Commission
Represented by its Secretary
Dholpur House, Shahjahan Road
New Delhi - 641018.
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4. Deputy Commissioner of Income Tax (Vig)
Office of the Principal Commissioner of
Income Tax, NER, Guwahati
1st Floor, Aaykar Bhawan
Christian Basti, G.S. Road
Guwahati - 781005.
5. The Principal Chief Commissioner of Income Tax
WB & Sikkim, Aaykar Bhawan
P-7, Chowringhee Square
Kolkata - 700069.
...Respondents
By Advocate: Sri S.K. Ghosh, Addl. CGSC
Date of Hearing: 04.02.2020 Date of Order: 22.05.2020
ORDER
NEKKHOMANG NEIHSIAL, MEMBER (A):-
This O.A. has been filed by the applicant seeking for the following reliefs:-
"8.1 That the impugned charge-sheet dated 27.12.2017 (Annexure A1) be set aside and quashed.
8.2 That the Hon'ble Tribunal be pleased to declare that the allegations pertaining to the year 2005-2006 cannot be an impediment for further promotion of the applicant after elapse of long period of 12 years and that too after promotion orders issued in favour of the applicant in the year 2015 and 2017.
8.3 Any other relief or reliefs as the Hon'ble Tribunal may deem fit and proper, including the cost of the case."3
2. After issuance of notice upon the respondents on 21.02.2018, stay order was granted on 06.04.2018 staying the operation of the impugned charge-sheet dated 27.12.2017 pending disposal of the OA. Thereafter, after giving reasonable opportunities to both the parties, hearing was concluded on 04.02.2020 and reserved for orders.
3. In response to the O.A., the respondent authorities filed their written statement on 27.08.2018. In the written statement, the respondent authorities submitted that the applicant in his capacity as Appellate Authority, passed an order on 18.07.2008 i.e. within three days from the date of hearing, without giving opportunity to the Assessing Officer who filed his counter submission within six days on 21.07.2008 leading to loss of revenue of Rs. 120.55 crores. They also brought out that the order of the applicant in his capacity as Appellate Authority has been set aside by the Hon'ble ITAT and restored the matter to the Assessing Officer vide its judgment and order dated 08.11.2016 proving that the applicant passed the appellate order hurriedly with malafide intention and ill motive and his case is 4 covered by the exception, as held by the Hon'ble Apex Court, in the case of K.K. Dhawan.
4. The applicant filed his rejoinder to the written statement on 09.10.2018. In his rejoinder, he brought out that there was an urgency to dispose of pending cases within a period of six months. As per the Action Plan, the cases were required to be disposed of expeditiously. In fact, the case pertains to the assessment year 2005-2006 and this was disposed of in 2008. He also contended that the charge-sheet has been issued to him in 2017 after lapse of over 12 long years.
5. The respondents filed reply to the rejoinder on 16.01.2019 wherein they have brought out that the Central Action Plan, as quoted by the applicant did not grant immunity to pass appellate order without proper verification of the submissions made by the Assessing Officer. They also highlighted that the order passed by him has been set aside by the ITAT on 08.11.2016. As such, the claim of the applicant that this charge-sheet has been issued after 12 long years, is misconceive and misleading. They also confirmed that the Memorandum 5 of Charge-sheet dated 27.12.2017 was issued after approval of the Hon'ble Finance Minister on 15.12.2017.
6. Additional rejoinder has been filed by the applicant on 25.04.2019 stating that the charge-sheet has not been issued and instituted/initiated by the competent authority i.e. the Hon'ble Finance Minister.
7. The facts of the case are that ― while the applicant was posted at Kolkata as Commissioner of Income Tax (Appeal) in the year 2008, he was authorised to hold and discharge additional charge as CIT(A)-XXIV, VIII, etc. in addition to his original post of CIT(A)-VI. During the period from 11.06.2008 to 30.07.2008, one of the cases cleared by him was pending demand against M/s Ellenbarie Exim Ltd for assessment year 2005-2006. This case subsequently has gone to ITAT who subsequently set aside applicant's order vide judgment and order dated 08.11.2016. As per the applicant, the case has been pending in the Hon'ble High Court of Kolkata by filing ITAT 168 of 2012 GA 1961 of 2012 [M/s Ellenbarrie Exim Ltd., Kol & Anr. V. Income Tax Officer, ward-7(3), Kolkata & Ors.]. 6
8. The charge-sheet dated 27.12.2017 contains only one Article of charge wherein the applicant has been charged for having deleted an additional demand of Rs. 120.55 crores (approx.) in an appeal disposed of by him in a matter of three days and by the aforesaid act of omission and commission had failed to maintain absolute integrity. The applicant represented against the Charge-sheet dated 27.12.2017 vide his representation dated 10.01.2018 requesting for withdrawal/cancellation of the charge-sheet.
9. As could be made out from the above, Memorandum of charge-sheet dated 27.12.2017 has been issued to the applicant on the ground that he had hurriedly cleared/deleted the pending demand of of Rs. 120.55 crores (approx.) against the Assessee within a period of three days. He also has not given any reasonable opportunity to make counter submission to the Assessing Officer so as to enable him to arrive at an objective decision. This decision of the applicant has been set aside by the ITAT subsequently in 2016. As such, decision and action on the part of the applicant in allowing the deletion of demand of Rs. 120.55 crores 7 (approx.) is due to lack of absolute integrity on the part of the applicant.
10. In this connection, it has been observed that CIT (A) [Commissioner of Income Tax (Appeal)], is a quasi judicial function, though the functionary is a part of the executive structure. His basic functional duty is to make fair and objective assessment and to take a decision with regards to the demand or otherwise raised by the Assessing Officer. Being the Appellate Authority, it is expected of applicant to be objective and fair in his decision making. This implies that he may or may not agree with what has been assessed by the Assessing Officer so as to maintain fairness and objectivity. The next hierarchy of the CIT (Appeal) is the ITAT, who is obviously empowered to take objective examination and decision in regard to the decision taken by CIT (Appeal). Accordingly, the ITAT is also may agree or disagree with the decision taken by CIT i.e. Commissioner of Income Tax (Appeal). This is the envisaged system.
11. In the present case, it is indeed evident that the applicant has not agreed to the assessment made by 8 the Assessing Officer. There could have been many cases wherein the Appellate Authority may or may not agree with the assessment made by the Assessing Officer. To find a fault ordinarily with a particular decision either at the level of the Appellate Authority i.e. CIT (Appeal) or even at the level of ITAT, the function of which quasi judicial nature shall not be fair and would be against the scheme of things put in place. It is of course agreed that the functionaries in this system could not be immuned from the normal disciplinary proceedings for obvious and glaring misconduct, misbehaviour including lack of integrity in discharge of their functions. It has also come to the notice of the Tribunal that in similar case, adjudication has been done by the CAT, Principal Bench in O.A. No. 201/2019 & M.A. No. 3262/2019 dated 16.10.2019 (Anuradha Mookerjee Vs. Union of India & Ors.). On perusal of this adjudication, it is observed that the case of the present applicant is exactly similar to that of the applicant in the aforesaid OA. In that O.A. i.e. 201/2019. That applicant has been charge-sheeted with 05 Articles of charge. However, main point of charge is that of lack of integrity by granting relief to the Assessee to the tune of Rs. 9 55,67,22,264/- within ten days. After examining the detail issues raised in the O.A, Principal Bench posed two issues for consideration as under:-
"We are of the view that two issues arise for consideration in this behalf, i.e., (i) whether initiation of the disciplinary proceedings against the applicant as regards the discharge of her functions in quasi judicial capacity, is permissible in law; and (ii) whether the allegations contained in the charge memo prima facie justify the proposed action."
CAT, Principal Bench has arrived at the conclusion that-
"The charge memo was based solely upon the imagination. It is fairly well known that if a person vested with the power to alter the legal status of another, permits his imagination to work, it may take him to a level, which he may not have imagined at all. The executive powers are required to be exercised on the basis of objective and verifiable material, and not on the basis of surmises, presumptions and imaginations."
12. We have examined the instant case taking into account the similar case as cited above. As brought out in the forgoing paras, the charge-sheet is issued essentially on the premise that the applicant must have accepted certain consideration for having cleared such a heavy amount. This is found to be based on suspicion and premise and not acceptable in the eye of law as brought out in the foregoing paras. Though the applicant may not be immuned from disciplinary 10 proceedings in discharging his duties in his capacity of quasi judicial nature, the basis for initiating the disciplinary proceedings as stated by the respondents that his decision was set aside by the higher authority i.e. ITAT is not acceptable basis for initiating disciplinary proceedings against the applicant as the system would not be able to function if this is done in a routine manner.
13. Keeping in view of the above and also in conformity with the decision of Co-ordinate Bench of CAT, PB (supra), we found that the charge sheet initiated by the respondent authority vide their Memorandum dated 27.12.2017 is not maintainable and liable to be set aside. Accordingly, Memorandum No. C-14011/33/2017 dated 27.12.2017 is hereby set aside.
14. O.A. stands allowed. There shall be no order as to costs.
(NEKKHOMANG NEIHSIAL) (MANJULA DAS)
MEMBER (A) MEMBER (J)
PB